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04/18/96 REBECCA BARNETT v. ZION PARK DISTRICT

April 18, 1996

REBECCA BARNETT, AS SPECIAL ADM'R. OF THE ESTATE OF TRAVIS KING, DECEASED, APPELLANT,
v.
THE ZION PARK DISTRICT, APPELLEE.



The Honorable Justice Freeman delivered the opinion of the court: Justice Harrison, dissenting: Justice McMORROW, also dissenting

The opinion of the court was delivered by: Freeman

JUSTICE FREEMAN delivered the opinion of the court:

Plaintiff, Rebecca Barnett, as special administrator of the estate of her son, Travis King, brought an action in the circuit court of Lake County against defendant, the Zion Park District (District). Travis drowned in a swimming pool owned and operated by the District.

The trial court granted the District's motion for summary judgment and the appellate court affirmed. 267 Ill. App. 3d 283. We allowed Barnett's petition for leave to appeal (145 Ill. 2d R. 315(a)), and now affirm the appellate court.

BACKGROUND

The record contains the following pertinent facts. The District is a local public entity as defined by the Local Governmental and Governmental Employees Tort Immunity Act (hereafter Tort Immunity Act or Act) (745 ILCS 10/1-206 (West 1992)). On June 9, 1990, the District owned and operated the Port Shiloh swimming complex. The facility included a pool alternatively referred to as the "old," "north," or "deep" pool (hereafter deep pool); the "south" pool; and the "baby" pool. The deep pool is 75 feet long, 45 feet wide, and 3 feet deep at the shallow end and 11 feet deep at the deep end.

June 9 was the first day of the 1990 swimming season. A sign was posted at the entrance to the facility's locker rooms that stated, inter alia, the dates and hours of operation and the general operating rules. Eleven lifeguards were on duty at the three swimming pools. Six lifeguards were on duty at the deep pool; Illinois Department of Public Health regulations required only two or three. 77 Ill. Adm. Code ยง 820.300(b)(3)(B) (1988 Supp.). The six lifeguards on duty at the deep pool were certified by the American Red Cross in lifesaving, cardiopulmonary resuscitation (CPR), and first aid, also required by public health regulations. They had received additional training from the District in lifesaving skills, CPR, and preparing for emergencies. The six lifeguards were actively overseeing, directing, and managing the pool.

The record contains evidence that 10-year-old Travis was walking forward on a diving board when he slipped, fell back, hit his head on top of the board, and fell into the water. Travis struggled, then sank towards the bottom of the pool. At least two pool patrons alerted two lifeguards to Travis' distress. However, the lifeguards dismissed their pleas and failed to respond, saying that they did not see anyone fall.

After Travis was in the water for approximately two or three minutes, a pool patron finally dove in and brought Travis up to the surface. Lifeguards pulled Travis out of the water and unsuccessfully administered CPR. Travis died a short time later.

Barnett brought an action against the District. Her original complaint contained wrongful death and survival claims that alleged negligence and willful and wanton misconduct. The negligence counts were dismissed from her second-amended complaint, and Barnett proceeded on her willful and wanton counts alone.

In her fifth-amended complaint, Barnett alleged that the District committed the following willful and wanton misconduct:

"(a) Failed to initiate lifesaving procedures to [rescue Travis] after being told by another patron of the pool that [he] had slipped, [fallen] and struck his head on a diving board and dropped into the water;

(b) Did not initiate lifesaving procedures to [rescue Travis] after being told by another patron of the pool that [Travis] was drowning;

(c) Did not initiate lifesaving procedures to [rescue Travis] after being told by another person at the pool that [Travis] was having trouble swimming."

The trial court granted the District's motion for summary judgment. Barnett appeals.

ARGUMENT(S)

We address at the outset two procedural issues. Barnett assigns error to the dismissal of the negligence counts from her prior complaint. She also contends that this is not a proper case for summary judgment.

Dismissal of Negligence Counts from Prior Complaint

Barnett assigns error to the trial court's dismissal of her negligence counts from her second-amended complaint. However, Barnett did not stand on the dismissed counts and appeal their dismissal prior to pleading over, i.e., filing a subsequent amended complaint. When a complaint is dismissed, a plaintiff must stand by the complaint if he or she wishes to have the dismissal reviewed. If the plaintiff pleads over, he or she waives the dismissal and has no right to assign error thereto. Foxcroft Townhome Owners Ass'n v. Hoffman Rosner Corp., 96 Ill. 2d 150, 155, 70 Ill. Dec. 251, 449 N.E.2d 125 (1983), quoting Cottrell v. Gerson, 371 Ill. 174, 179, 20 N.E.2d 74 (1939); see also Villareal v. Trevino, 30 Ill. App. 2d 77, 81-82, 173 N.E.2d 582 (1961).

Barnett insists that the negligence counts in her second-amended complaint are part of her fifth-amended complaint. However, Barnett did not re-allege or otherwise incorporate those counts in her third, fourth, or fifth amended complaint. Rather, she proceeded on her willful and wanton counts alone. Where an amended pleading is complete in itself and does not refer to or adopt the prior pleading, the earlier pleading ceases to be part of the record for most purposes and is effectively abandoned and withdrawn. Foxcroft, 96 Ill. 2d at 154, quoting Bowman v. County of Lake, 29 Ill. 2d 268, 272, 193 N.E.2d 833 (1963). Allegations in a former complaint not incorporated in the final amended complaint are deemed waived. Foxcroft, 96 Ill. 2d at 155. Thus, Barnett has waived appellate review of the dismissal of the negligence counts.

Availability of Summary Judgment

Barnett contends that this is not a proper case for summary judgment. In reviewing a trial court's entry of summary judgment, the only issue on appeal is whether "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." 735 ILCS 5/2-1005(c) (West 1992). A court must construe the pleadings, depositions, admissions, and affidavits strictly against the movant and liberally in favor of the opponent. Review of summary judgment rulings is de novo. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102, 131-32, 180 Ill. Dec. 691, 607 N.E.2d 1204 (1992).

Barnett argues that genuine issues of material fact exist that preclude the entry of summary judgment. She labels as questions of fact whether the lifeguards committed willful and wanton misconduct and whether the lifeguards provided "supervision" within the meaning of section 3-108(b) of the Tort Immunity Act (745 ILCS 10/3-108(b) (West 1992)). However, these issues ultimately involve interpreting the Tort Immunity Act, which is purely a matter of law and appropriate for summary judgment. See Lane v. Titchenel, 204 Ill. App. 3d 1049, 1053, 150 Ill. Dec. 391, 562 N.E.2d 1194 (1990); Antonides v. Plascon, Inc., 103 Ill. App. 3d 78, 81, 58 Ill. Dec. 500, 430 N.E.2d 532 (1981). Likewise, the related question of whether the District owed Travis a duty of care is a matter of law and appropriate for summary judgment. See Vesey v. Chicago Housing Authority, 145 Ill. 2d 404, 411, 164 Ill. Dec. 622, 583 N.E.2d 538 (1991).

Tort Immunity Act

We now reach the merits of this appeal. In seeking and obtaining summary judgment, the District argued that it was not liable in tort as a matter of law because: (1) it did not owe Travis any legal duty, and (2) it was immune from liability under section 3-108(b) of the Tort Immunity Act (745 ILCS 10/3-108(b) (West 1992)).

Under the doctrine of sovereign immunity, a governmental unit in Illinois was immune from tort liability. However, this court abolished sovereign immunity in 1959. Molitor v. Kaneland Community Unit District No. 302, 18 Ill. 2d 11, 163 N.E.2d 89 (1959). In response to Molitor, the legislature in 1965 enacted the Tort Immunity Act (745 ILCS 10/1-101 et seq. (West 1992)). Also, the 1970 Illinois Constitution abolishes the doctrine of sovereign immunity, except as the legislature may provide by statute. Ill. Const. 1970, art. XIII, ยง 4. The Tort Immunity Act adopted the general principle that local governmental units are liable in tort, but limited this liability with an extensive list of immunities based on specific government functions. Burdinie v. Village of Glendale Heights, 139 Ill. 2d 501, 506-07, 152 Ill. Dec. 121, 565 N.E.2d 654 (1990). Based on these developments, "governmental units are liable in tort on the same basis as private tortfeasors unless a valid statute dealing with tort immunity imposes conditions upon that liability." LaMonte v. City of Belleville, 41 Ill. App. 3d 697, 705, 355 N.E.2d 70 (1976), citing Krieger v. Village of Carpentersville, 8 Ill. App. 3d 243, 247, 289 N.E.2d 481 (1972); accord Austin View Civic Ass'n v. City of Palos Heights, 85 Ill. App. 3d 89, 95, 40 Ill. Dec. 164, 405 N.E.2d 1256 (1980).

Duty

Barnett contends that the District owed Travis a duty of reasonable care. There can be no recovery in tort for negligence unless the defendant has breached a duty owed to the plaintiff. Boyd v. Racine Currency Exchange, Inc., 56 Ill. 2d 95, 97, 306 N.E.2d 39 (1973); Barnes v. Washington, 56 Ill. 2d 22, 26, 305 N.E.2d 535 (1973). It is settled that the Tort Immunity Act does not impose on a municipality any new duties. Rather, the Act merely codifies those duties existing at common law, to which the subsequently delineated immunities apply. West v. Kirkham, 147 Ill. 2d 1, 14, 167 Ill. Dec. 974, 588 N.E.2d 1104 (1992); Vesey, 145 Ill. 2d at 412-13. Thus, we must look to the common law and other statutes to determine whether the District owed Travis a legal duty. See Vesey, 145 Ill. 2d at 413.

We agree with the appellate court that the District owed Travis a common law duty of reasonable care. Unquestionably, at common law a private operator of a public swimming pool or public bathing resort would have owed Travis a duty to make reasonable provisions and to take reasonable precautions for his safety. See Cope v. Doe, 102 Ill. 2d 278, 288, 80 Ill. Dec. 40, 464 N.E.2d 1023 (1984); Brumm v. Goodall, 16 Ill. App. 2d 212, 224-25, 147 N.E.2d 699 (1958); Decatur Amusement Park Co. v. Porter, 137 Ill. App. 448, 452 (1907). The appellate court in this case, agreeing with Blankenship v. Peoria Park District, 269 Ill. App. 3d 416, 207 Ill. Dec. 325, 647 N.E.2d 287 (1994), reasoned that since the District is as liable in tort as a private tortfeasor ...


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